Thursday, December 25, 2014

I recently had an vigorous, and at times acrimonious, exchange on Twitter concerning the (il)legality of Israel's presence in and legal claims to the West Bank. (Jerusalem, Golan, and the Gazan airspace and maritime waters were all excluded for convenience's sake.) I found it bewildering and depressing how woefully unacquainted with international legal rules, theory, and history those who professed to speak with the utmost authority on the matter were.This issue has been hashed and rehashed--with varying degrees of expertise--in diverse loci. A very lucid and approachable summary of the salient arguments and counterarguments is provided dispassionately by e.g. Benvenisti. I will, nevertheless, endeavor to distill these even further here. In the interests of full disclosure, I clarify ab initio that I am a Zionist, an atheist Jew, and a globalist. I also firmly subscribe to the notion that Israel should withdraw from the West Bank on legal, ethical, political, and self-preservation grounds.TitleIsrael derives title to any and all territory from its international recognition, not religion or historical ties. Further, territory cannot be acquired by force; that is a longstanding and indisputable principle of international law. That axiom is not vitiated in any way by virtue of the character of the force in question (e.g. the distinction between an aggressive war and one of self-defense.) The only way borders can be altered are by means of cession, secession, and succession. All three, obviously, necessitate a treaty or similar instrument. The most recent such applicable instrument in the instant case is the 1949 Armistice Agreement, meaning that land gained and retained in subsequent conflicts is not legally Israel's. Israel is fully cognizant of this fact, wherefore it never undertook to annex the West Bank, realizing that such a move would be repudiated internationally as wholly illicit. Instead, it has been exercising territorial administration over the West Bank since 1967.Legal status of the West BankEntering a territory without an enabling treaty constitutes belligerent occupation (occupatio bellica) under international law. As such, the relevant laws are supposed to apply, which include principally the Hague Conventions of 1899 and 1907, the Geneva Conventions of 1949 and its Additional Protocols, and the customary international law. (The latter has been to a large degree codified in the conventional instruments aforesaid.) Israel has acceded to the First Hague Treaty, and is a party to all the four 1948 Conventions. It has, notably, not signed the seminal Additional Protocols (except the rather pedestrian third one), being one of the very few states in the world to not have done so, the others not being the most shining examples of embodiment of modern liberal democratic values.The above being the case, one would be forgiven for deducing that the laws of occupation pertain to the West Bank. Yet, Israel demurs on the basis that:

As regards Hague 1907 and Geneva 1949, these apply between/among "contracting parties." Since no contracting party held valid title to the West Bank prior to the 1967 occupation (Jordan's occupation/annexation thereof was illegal) or holds one now (Jordan has renounced all claims to the territory), Israel asserts that the said instruments are inapplicable.

Israel has also been a "persistent objector" to the idea that the West Bank is subject to occupatio bellica. Accordingly, in Israel's view, even custom does not apply.

The upshot is that Israel is supposedly not bound by the laws of occupation in its exercise of authority in the West Bank.

It ought to be noted that the overwhelming preponderance of legal scholars (including in Israel), the I.C.J., the United Nations and its agencies, governments, and international organizations vehemently disagree with the above contentions by Israel. Moreover, the Israeli Supreme Court as well as many of its politicians--including some of the highest ranking ones--have made statements (admittedly oblique) to the effect that the West Bank does indeed constitute occupied territory.The argument that the laws of occupation do not cover the West Bank, however, has enabled Israel to circumvent many of the laws' prescriptions and proscriptions, the most notable being the prohibition of transfer of own civilian population to the occupied lands (i.e. establishing and populating settlements).SettlementsApart from the fact that these are viewed as illegal by almost every authority of note the world over, Jewish settlements are often cited as the foremost obstacle to attaining a political settlement (no pun intended) between Israel and the Palestinians. I submit that is a flawed view. The settlements occupy barely 5% of the West Bank territory, and are almost entirely situated in the propinquity of the Green Line. As numerous studies and concrete proposals have determined, it would be easy to incorporate them into Israeli borders and cede comparable Israeli territory in recompense as part of a comprehensive peace deal. The issue of the settlements, therefore, is a deflective device (a "red herring," as it were) in the discourse concerning the feasibility of successfully negotiating a peace accord.

Nevertheless, successive Israeli governments' (particularly the present Netanyahu's administration's) ornery insistence on expanding the existing and establishing new settlements can be said to be indicative of their overall negative and obstructionist attitude toward the eponymous "peace process." The fact that "the other side" has also repeatedly acted in ways apparently prejudicial to the "peace process" does not mitigate Israel's responsibility in this regard.CritiqueThe antecedent necessarily raises a number of issues, as follows:--

The laws of occupation, and especially the Geneva Conventions and Additional Protocols, were created in the aftermath of the horrors and traumas of the Second World War. Their main aim and purpose is to safeguard innocent, destitute civilians who find themselves in the theater of war through no fault of their own. The Conventions' character is purely humanitarian, humane, and human. Israel's otiose protestation that these treaties do not apply to the Palestinians on a technicality, even if that was legally correct, reflects very poorly on a state that professes adherence to the principles, values, and ideals of modern liberal democracy. A country that ostentatiously trumpets its liberalism and humanitarianism, claims to represent a beacon of humanity in a region beset by barbarism, and strives to be fully accepted into the family of nations should be nothing short of mortified that it rejects the application of one of the most basic instruments of human compassion to millions of people under its direct control.

Whether the laws of occupation apply or not, Israel does not on any wise possess valid title to the territories gained in any event since the 1949 Armistice. That being the case, the status of such territories has to be determined by a treaty or other legal maneuver (e.g. renouncing all claims to the lands, such as happened with Jordan in 1988 or with the 2004 disengagement from Gaza). However, an important principle intervenes, and gives additional urgency to the matter: the right to self-determination. This right is enshrined in the U.N. Charter and the I.C.C.P.R. (which Israel has signed and ratified); it is also widely accepted to form part of ius cogens. A plebiscite to such an effect has been often advanced as a remedy "repairing" all preceding illegalities and questionable acts on the part of the occupant.

There is, however, a competing principle in international law: the preservation of territorial integrity. This precept has been gaining in prominence and consistently supplanting self-determination since the natural demise of the trusteeship framework on the United Nations. Indeed, in all the territorial administration projects undertaken by an international organization, cases that could have been solved by partitioning the lands concerned along demographic lines were approached diametrically oppositely: The hostile groups were forced to remain together and--as G. H. Fox puts it--replace war with politics. They had to construct democratic institutions and mechanisms that would ensure an equitable representation of them all, and, to use a demotic turn of phrase, "learn to live" with each other. Naturally, this does not apply in the West Bank (it not being a part of Israel), but it is a formidable trend to consider nonetheless.

Conclusions

The foregoing entails certain inescapable conclusions.

The status quo is untenable. The Palestinians will not resign themselves to perpetual occupation. They will not accept further untold generations living in limbo as, essentially, stateless persons, condemned to impaired lives due to politics. Contrary to preposterous proposals among some sectors of Israel's body politic, they will not be bribed into abandoning their homes, and despite what can only be termed as wet dreams on the part of others, Israel will not be able to expel them wholesale without simultaneously signing its own death warrant. The Palestinians are, hence, there to stay, millions of them, and not getting any happier.

Furthermore, Israel has already seriously depleted its credit of good will among people the world over: From the underdog and victim of centuries of persecution and relentless, vicious assaults Israel is now a miscreant and even a villain to increasingly many. A decade ago, when Israel's hotels, pizzerias, and nightclubs were being suicide bombed on a weekly basis, this elicited much sympathy; the resulting operations--far more intensive and destructive than the recent ones Gaza--met largely with understanding and mostly unqualified approval. Today, though rockets indiscriminately rain down on its kindergartens, malls, hospitals, and homes, well-nigh any action in response by Israel brings hundreds of thousands of people out on the streets in protest. Though the protesters' motivations are baldly hypocritical and deeply suspect, the accusation that they are anti-Semites is facile and ludicrous. More than anything else, they are fed up with the conflict. They will not be disappearing either but will only increase in quantity as well as in the quality of their action.

The current realpolitik will also undergo changes. It is certain that the United States--as Israel's main sponsor and, some would say, enabler--will gradually lose both its interest and its clout. It is extremely doubtful that whoever replaces or complements the U.S. on the world stage will be as amicably disposed to Israel. The E.U. states, too, have collectively and individually been losing patience with Israel and are taking steps to support a Palestinian state without deference to Israel. The emerging economies have traditionally been cool toward Israel, and that is unlikely to change; quite the contrary might be the case.

The corollary--unmistakable suggestions of which are already materializing--is that maintaining the present situation will eventuate in Israel's turning into a pariah state. Oppressing millions of unwilling people can simply not be done with impunity anymore, period.

Inasmuch as the current state of affairs needs to be changed, Israel would be well advised to take steps to do so expeditiously. As noted supra, a separate Palestinian state might not be a viable option much longer, both due to prevailing legal and political trends and due to the extent of inextricability of Israel's involvement in the West Bank.

The only medium- and long-term alternative to "two states for two peoples" is a single, binational state, in which the Palestinians of the West Bank would gain full Israeli citizenship. One does not have to be conversant with any social science to appreciate that lumping together in close quarters two inimical groups each numbering in millions who diverge greatly in culture, language, religion, economy, education, lifestyle, values, and pretty much every demographic and psychographic category imaginable would be an unmitigated disaster for both, but particularly for the (current) Israelis.